In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Tuesday, 30 June 2009

Yesterday and today the Government has published information about the implementation of the 'Digital Britain' report. The Digital Economy Bill is outlined here. Actions which do not require primary legislation are described here.

Monday, 29 June 2009

The Journal of Intellectual Property Law & Practice (JIPLAP), the flagship IP title published monthly by Oxford University Press, is looking for peer reviewers for articles submitted to it. There are plenty of peer reviewers for articles covering patents and trade marks, but relatively few are available to offer their thoughts as to the suitability for publication of articles in the field of copyright.

Left: like pier review, peer review can be a long and lonely process ...

You don't need to be an expert on spelling, grammar or syntax (OUP has resources to handle those issues), but you do need the ability to tell whether an article is a good one or the other sort. There is no fame or glory for doing the reviewing; nor is there any pay. On the plus side, your identity is kept away from the author, who will never know who it was who recommended turning your article into a fleet of paper boats.

If you believe that you have the sort of commercial experience or academic or professional profile that would entitle you to opine on the issue of fitness for publication, and you have (i) the patience to read through bad manuscripts as well as good ones and (ii) enough time to be able to give an opinion -- which need not be long -- within ten working days, please email me here.

This appeal may be repeated from time to time. This is because peer reviewers generally burn out after they're reviewed three or four articles. This is quite normal, so if you do volunteer to review copyright articles you needn't feel that you are wedded to the commitment.

Wednesday, 24 June 2009

"The Impact of DRM on Access to Exceptions: The First Empirical Assessment" is the title of a talk which Dr Patricia Akester (Centre for IP and Information Law, University of Cambridge) gives next Wednesday, 1 July 2009. I'm chairing the event, which is kindly hosted in the London office of law firm McDermott Will & Emery.

"Dr Akester will be talking about a project she undertook looking at the impact of technological measures on the ability of users to take advantage of certain statutory exceptions to copyright. When technological measures were under consideration in the mid 1990s two stark scenarios presented themselves: on the one hand, an ideal world where copyright owners could use DRM to make their works available under a host of different conditions in a way that responded to the diversity of consumer demand; on the other, a more bleak environment where all users of copyright material (and much non-copyright material) would be forced to obtain permission and pay to access material that previously would have been available to all.

In the face of these two extreme visions, the European legislature developed a compromise position, embodied notoriously in Article 6(4) of the Information Society Directive. The legislature appeared to be hoping that rightholders would voluntarily make material within certain specified exceptions available to users.

Based on a series of interviews with key organisations and individuals, involved in the use of copyright material and the development and deployment of DRM, Dr Akester examined how these issues are working out in practice".

This will be a lovely event, so don't miss it. You can get all the details from the IPI's website here. It's £60 for casual attendees, £30 for IPI members and IPKat readers. If you're a student or an academic, entry is free. If you're coming in order to sound off about Digital Britain, you pay double. See you there?

Page 108 of the Digital Britain report quotes Charles Leadbetter's The Digital Revolution: the Coming Crisis of the Creative Class: "Twenty years ago the industries that provided most of our information and entertainment resembled a few very large boulders strewn over a largely empty beach". ISPs who disseminate protected content have long joined this seaside rubble but apparently are not regarded as boulders (yet).

Digital Britain tells us (page 111) that two obligations will be placed on ISPs (1) to notify account holders who persistently infringe and (2) to maintain and make available (on the basis of a court order) data to enable serious infringers to be identified.

So, the goverment is asking the ISPs, ever so very nicely, if they will co-operate to help valuable industries to survive. But this seems to beg the big, dumb question: should not the technology sector take responsibility for the content that they are distributing and share their enormous revenues with the content owners and creators, just like any other distributor that is enriched by the content they make available? Society and the economy are becoming more and more reliant on the behemoths that deliver digitally - how powerful and how crucial will their services have to be before these distributors are roped in and required to pay for the raw materials on which they are building their industry? Digital Britain says that should notification not have the required effect of reducing (not eliminating) filesharing, backstop measures will be instituted that oblige ISPs to apply technical measures to reduce or prevent infringment. These would include blocking (of sites, IPs and URLs), protocol blocking, port blocking, bandwidth capping, bandwidth shaping, content identification and/or filtering. Oh, so that's OK then - but the Report's commitment to "commercially-led solutions" will take time.

One can only hope that this welter of litigation will help the ISPs reach some sort of tipping point where it becomes uneconomic to continue their supine approach to paid-for content. (Cue sound of lawyers collectively rubbing their hands together). And alongside Leviathans challenging ISPs, maybe there is a role for the smaller guys. A previous post suggested using criminal law to bring a prosecution for infringement where ownership is not an issue. In the light of the recently announced matched penalties for real world and on-line infringement, would the legal equivalent of love bombing of the ISPs be effective for smaller players with a campaigning spirit?

Tuesday, 23 June 2009

Edward Humphreys has kindly provided the following report for the 1709 blog. Edward is a lecturer and researcher at Jönköping International Business School, Sweden, writing a PhD thesis on the subject of legal protection of TV formats, comparing the UK and Swedish positions by reference to international IP conventions.

Some 40 lawyers, media professionals and academics gathered at the offices of FremantleMedia in central London last Tuesday, to hear the results of research conducted by Bournemouth University and FremantleMedia on ‘The exploitation of television formats: intellectual property and non-law based strategies’ (previous post here).

The event, a so-called dissemination seminar, and the research were funded by the Economic & Social Research Council (ESRC), and sought to provide answers to the question, ‘why pay for a television format if you can re-create it for free?’ The aim was to understand the effect of the – at best – uncertain legal protection for formats on the UK’s creative industries, and to see whether lessons can be learned for other industries.

The researchers from Bournemouth – Professor Martin Kretschmer and lead researcher Sukhpreet Singh from the University’s Centre for Intellectual Property Policy and Management, and Jonathan Wardle, director of its Centre for Excellence in Media Practice – have over the past three years been examining 59 different format disputes, as well as the exploitation strategies of format producers, in this latter regard cooperating closely with FremantleMedia and using case studies of some of their most successful formats.

Some of the many interesting findings they presented included the following:

80% of the format disputes studied have involved claims for breach of copyright; other causes of action included contract and breach of confidence, but a mere 2% were based on passing off. Of the cases that made it to court (64%), half resulted in victory for the claimants and half for the defendants.

Although there are potential legal causes of action to protect formats, the apparent uncertainty of relying on such action has led to the development of additional, non-legal strategies, which it was suggested provide the answer to what is being paid for.

The three main strategies identified are: (1) formalising the sale of knowledge, by providing, for example, detailed production bibles and ‘flying producers’, sent in to local territories to assist with their format remakes; (2) brand management, including a carefully coordinated trade mark strategy based on consistent names and logos across different territories; and (3) what was referred to as social and distribution networks – essentially the importance for success of speed to market (staying ahead of the game by making a establishing successful programmes in different territories before the copycats can take advantage), and the notion that producers/developers are so dependent on one another within a small market that they need to respect the rules of the game to maintain their reputation and ensure future sales.

Tactics to back this up should include the use of ‘deterrent letters’ to possible copycats. This latter practice was specifically mentioned by FremantleMedia as a way of encouraging broadcasters who might stray to an unlicensed but similar format to consider the detrimental impact on their ability to license in future, more popular FremantleMedia formats: to ‘be big’, it was pointed out, makes this strategy all the more effective.

All of the research referred to at the seminar, including the various video interviews and case studies, not to mention a 138-item-long reference list, can be accessed via a smart and professional sub-site of the Bournemouth University website, here. Sukhpreet Singh’s soon-to-be-completed PhD thesis will provide a detailed examination of the results and findings.

Hugo was also at the seminar and wondered whether there might be some potential competition law issues: abuse of a dominant position and concerted practices under Articles 82 and 81 EC? On the one hand, Fremantle revealed a substantial market share and said that deterrent letters were sent when it was known that there may not be a viable claim (thus exploiting the uncertainty of the copyright position). On the other hand, the industry appears to be colluding to alienate any company that doesn't play by the rules – ‘it is hard to sustain the role of outcast’. It would be very interesting to hear a Fremantle perspective on this.

The first in the series of Research Handbooks in Intellectual Property brought out by Edward Elgar Publishing, Copyright Law: a Handbook of Contemporary Research, was published last year. Edited by eminent legal scholar Paul Torremans (School of Law, University of Nottingham, UK and Faculty of Law, University of Ghent, Belgium), it has now come out ina much more affordable paperback format too. According to the publisher's blurb,

"Copyright law is undergoing rapid transformations to cope with the new international digital environment. This valuable research Handbook provides a thorough and contemporary tableau of current thinking in copyright law. It traces the changes undergone and the challenges faced by copyright, as well as its roots and its diversity, combining to present a colourful picture of a dynamic research area.

The editor brings together an elite group of international copyright scholars who offer incisive and original analysis of a wide range of issues and aspects of copyright law, and in some cases a multiplicity of perspectives on a single topic. Rigorous and often thought-provoking in nature, this research Handbook clearly maps the current landscape, and will also undoubtedly stimulate further research in the field.

Analysing the cutting edge of current copyright research, Copyright Law will be of great interest to researchers, students, practitioners and policymakers".

I'm biased because I'm the Series Editor for the Research Handbooks in Intellectual Property -- but I really do think it's a good book to have, not least because it is a refreshing read which makes a pleasant enough change from having to battle through exhaustive and earnest accounts of the law. Also, while many academics are a bit defensive about their special subjects, sending out a message of "This is MY subject, so keep of it!", the tone of most of this collection is more one of "Come on in, the subject's fine!".

Though it would be indivious to single out any chapter for particular praise, I particularly enjoyed Reto Hilty's chapter on copyright law and scientific research, in which the need to treat the scientific sector differently from the entertainment and cultural sectors in terms of access to works and fair dealing shines through; I also liked Brigitte Lindner's realistic appraisal of the scope for deploying alternative dispute resolution in that sticky area where copyright law meets technical solutions to copying. Most thought-provoking though was "Draw me a public domain" by Valérie-Laure Benabou and Séverine Dusollier, which talks of terminologies, metaphors and other things that get the grey cells working furiously away.

If you've not been following socio-political developments in Germany, take a look at this guest piece by German legal scholar and IP blogger Axel Horns on the reasons for the popularity of the Pirate Party in Germany.

Monday, 22 June 2009

From the Intellectual Property Office in the United Kingdom comes this press release concerning proposed penalties for online infringement.

"Tougher penalties for online Copyright Infringement proposed as part of Digital Britain package

Following the publication of the Digital Britain Report, the Intellectual Property Office has outlined proposals to improve copyright licensing and increase financial penalties for online infringers.

They include:

• Legislative changes to license orphan works. Legislation will effectively deal with this issue in order to remove the infringement risk that currently prevents collecting societies licensing orphan works (arising as they do not have a mandate from the rights holder). [Curious way to begin the substantive bit of a press release with "tougher penalties" in its title] This will benefit cultural organisations by allowing them access to currently unusable material [which some have been accessing anyway because the risk is small or because they didn't know there was one]. It will also enable public access to a great number of historical works that are currently locked up [this seems to confuse access to use with access to view -- these are quite different issues].

• New powers for government to authorise collecting societies to set up extended licensing schemes. This will allow certain collecting societies to act for a group of rights holders even if they are not all members of the society, unless a specific rights holder has opted out of the scheme [will this result in the authorisation of just one society per right?].

• Underpinning the operation of collecting societies. As collecting societies reach out to new groups of customers, we need to underpin their operations with a statutory backed framework [underpinning: does that mean 'supporting' or 'pinning down'?].

• Consultation on improving operations of collecting societies. Government would not make recommendations to utilise the above powers without formal public consultation with stakeholders and other interested parties [the key word is "improving": it can mean different things when viewed from the perspectives of rights owners, users of works and consumers].

• Matched penalties for online and physical IP infringement. This proposal will introduce a statutory maximum penalty of £50,000 for all IP offences [the pedant asks: "for all IP offences" or "for each IP offence"?].

Commenting on new proposals, David Lammy, Minister of State for Intellectual Property said: "We must have the tools in place to tackle serious and organised IP crime. The proposed £50,000 maximum penalty for online and physical infringement sends a clear message to IP criminals. In this online age, IP infringement warrants a serious response. It needs to be stamped out- regardless of whether the offence is online or offline."

He added "In order to modernise and streamline the existing copyright system, I’m proposing a number of changes to the way collecting societies can operate.I want to see greater development to ensure that our orphan works such as those great cultural works amassed in the BBC and the British Library are accessible to those who wish to benefit from them.

We should underpin the operation of collecting societies so that customers receive similar services and safeguards they would expect when dealing with a quality utility company."

I've always wondered what the purpose of adding quotes like this is, when they don't add any substance to the press release. Still, the Minister has kindly made himself available this Thursday evening at a reception. I hope to ask him for clarification of these proposals, as well as the really pressing question: why, when he has a presence on Twitter, does he never tweet on intellectual property issues -- even when prompted by me to do so?

Sunday, 21 June 2009

An amendment to the Japanese Copyright Law was passed on 12 June 2009.

Although it covers various issues including the exploitation of orphan works, caching associated with search site services, and making available to the public for the welfare of the persons with visual or aural disabilities, the main feature may be the provision which makes downloading of sound or visual recordings of copyright digital contents illegal when the contents were uploaded illegally and the downloader knows it (Article 30-1-iii).

The above amendment is stipulated as an exception to the private use exception (Article 30-1). Therefore, the scope of the private use exception will become smaller.

When this issue was proposed in 2007, it induced massive public opposition. In response to this, the amendment is limited to the above scope and punitive clauses are not provided. Mere streaming of the illegally uploaded contents is considered to be outside of the scope of the above provision. Some people are concerned that the new provision may have a negative impact on the use of legally uploaded copyright material. It is also pointed out that the amendment may not be used much as detecting a downloader is not easy. However, it appears that the new provision is generally welcomed because it protects legitimate on-line distribution services and may help the development of such businesses.

University College London (UCL) has established the UCL Publications Board to implement the university’s open access policy and be responsible for ensuring that, subject to copyright permissions, all UCL research is placed online in the university’s institutional repository, freely accessible to all. According to a UCL press release,

"This move places UCL at the forefront of academic institutions who are pioneering the move to Open Access, as the first European university ranked in the global top ten in the THE–QS world university rankings to do so.

Open access is a new form of dissemination for published books, articles, conference proceedings and digital outputs. Its principles are based on the Berlin Declaration, which urges authors to retain the rights in the materials they produce and to place a copy in an open access medium – in UCL’s case the university’s electronic repository – so that they are available free at point of use to anyone, anywhere in the world, with an Internet connection....”

You can read the 2003 Berlin Declaration on Open Access here. More fun to read, though, is the urban legend attached to the Berlin Declaration of 1963, which you can read about here.

Friday, 19 June 2009

The second run of the illegal file-sharing case against single mum of four Jammie Thomas-Rasset has ended with the same result as the first, finding the 32 year old Minnesota resident guilty of violating music copyrights and ordering her to pay hefty damages to the recording industry - set by the federal jury at $80,00 per song - or $1.92 million in total. The award is substantially higher that the first case where penalties were set at 'just' $220,000. The Jury found that Thomas-Rasset has posted 24 songs on the Kazaa website so others could illegally download these - tracks included “Iris” by the Goo Goo Dolls and “Welcome to the Jungle” by Guns ‘n Roses. The action was one of 35,000 brought by the Recording Industry Association of America against people it claims were illegally sharing music before changing its policy in December but was then only case to go to trial (thus far) in the U.S. The case came back for a second trial after District Judge Michael J Davis dismissed the first verdict, saying he gave the jury incorrect instructions on what could constitute infringement - in effect what constituted distributing music files. Thomas-Rasset, whose lawyer claimed that she had tried to settle the case, said. “Now the record industry has a $2 million award against me. The only thing I can say is good luck trying to get it, because you can’t get blood out of a turnip.” Fred von Lohmann, a lawyer with the Electronic Frontiers Foundation said “The disproportionate size of the verdict raises constitutional" adding “was the jury punishing her for what she did, or punishing her for the music sharing habits of tens of millions of American Internet users?”.

From the IT Law in Ireland weblog of respected Irish scholar TJ McIntyre comes news that, following their inconclusive action against Eircom (see IPKat post here) earlier this year, the music industry is suing internet service providers UPC and BT.

Left: cunningly disguised as an Irish harp, this sophisticated device filters out all downloads so large they can't fit between the strings ...

In the earlier action EMI,SONY BMG, Universal Music and Warner wanted Eircom to install special software to detect the unique “fingerprint” of illegal up/downloaded copyright music files but Eircom refused, saying it was not technically feasible and that it would have interfered with the operation of its network and services.

Says TJ of the current action:

"I believe that litigation demanding that ISPs monitor what their users do and/or disconnect users based on three unproven allegations is unjustified - for the reasons why, see the Digital Rights Ireland site in relation to user monitoring and three strikes".

Wednesday, 17 June 2009

If anyone happens to be in London on Tuesday 23 June, is somewhere near The Old Nick, Sandford Street between 5.30pm and 7pm and wants to exchange informal pleasantries concerning Digital Britain (see here and here), 1709 Blog team member Jeremy will be there and will be delighted to discuss that portentous document over a refreshing drink or two.

No need to RSVP (but if you want, you can email Jeremy here), and we each buy our own drinks ...

Dominic McGonigal, Director of Government Relations, PPL has submitted the following post in response to earlier posts on this topic:

"Starting with a few inaccuracies, a previous post on this blog claims that PPL will be in a quandary if the USA introduces a broadcast right. On the contrary. A quick look at the facts reveals the opposite. PPL has been campaigning for a broadcast right in the USA from the start and will continue to the end.

It cannot be right that American, British or any other artist has their recordings used for free by American radio to create a $16bn industry. US radio stations have enjoyed a free ride for decades. It’s time now for fair play in the land of the free.

The lack of a broadcast right in the USA has had ripple effects beyond the States. It has meant that American artists have also lost out on overseas airplay royalties. But the picture is not straightforward. The failure of the USA to sign up fully to the international copyright treaties has produced anomalies as other countries have taken different approaches to this imbalance to international norms.

The UK’s approach has been to deny American performers rights to airplay royalties, but to allow sound recordings to be protected if they are released in a ‘Rome’ territory, in other words, most of the rest of the world where there is a broadcast right. In practice, US recordings are invariably released simultaneously (within 30 days) in a ‘Rome’ territory, generally Canada or the UK, and so gain protection. This means that US sound recordings are licensed by PPL for radio, but the American performers on those recordings do not get paid by PPL. Under UK legislation, the owner of the American sound recording is entitled to receive all the broadcast revenue for that recording so the PPL distribution goes direct to them.

Of course, all this will change when, we hope, the USA finally passes the Performance Rights Act. That will bring the USA up to international norms in the copyright treaties which will trigger reciprocal rights for American artists throughout the developed world. In the UK, American repertoire will be treated like any other, with revenue from a track split 50/50 between performers and record companies. For the first time, then, American artists on American recordings will be entitled to airplay royalties from PPL.

That is a fair result. Artists will get paid for their US airplay and American artists will finally benefit fully from their successes abroad – if their government passes the Performance Rights Act".

Tuesday, 16 June 2009

Having now had a chance to scan the DB report and how it impacts on copyright, there are three key points (references are given to the paragraphs in the report to save those who don't want to read the whole thing, although confusingly, the individual chapters do not have numbering that flows right through the report, so the references are all to Chapter 4!):

1. ISP liability (paras 13 to 31) - here the Government seems to have come down closer to the content lobby than the ISP lobby. To start off with, ISPs will only be obliged to embark on a campaign of letter writing and disclosing (in response to Norwich Pharmacal orders) the details of repeat offenders BUT if that doesn't lead to 70% of letter recipients stopping file-sharing within a year, Ofcom will be under a duty to go further and, after getting approval through a Statutory Instrument, will have a menu of other remedies to force ISPs to implement, including IP blocking, port blocking, bandwidth capping and even content ID and filtering techniques. ISPs are already (according to the Guardian) complaining about who is going to pay for this, but the content owners aren't too happy with how long it might take to get to some proper graduated response either, beyond letter writing. There is a whole separate consultation on the legislation to achieve this, available here.

2. Orphan works (paras 39 to 47) - the government is going to remove criminal sanctions and introduce a regulatory framework to allow orphan works exploitation schemes to be set up - possibly with a move towards "extended licensing" through collecting societies, on the Scandinavian model.

3. Modernising copyright licensing and administration (paras 33-38) - the government commits to moving forward on the IPO's Copyright Strategy, with a promise to work on the strategy and to continue to look for ways to make it easier for people to license rights - and some suggestion about looking at the balance between creators and creative business - which sounds like meddling (in the unlikely event that the present government lasts long enough to implement this strategy, an election being due within a year).

The report also dismisses some of the other copyright-related kites that were flown during the DB process - a broader "fair use" doctrine is dismissed (para 32) as being a matter for Europe, the idea of retransmission levies (paras 54 to 61) is also dismissed, while private copying and format-shifting levies are also parked in the long grass of a government commitment to "keep this issue under review" and to invite Ofcom to assess the cost/benefit of introducing them.

So whatever happened to the Rights Agency? There is an obscure reference at the end of the Report to something the IPO is also supposed to be publishing today, but there is nothing obvious on the IPO website and the only reference in the body of the report is to the Rights Agency becoming the "Rights Authority" an industry body to help Ofcom to draw up codes of conduct to implement the proposals discussed in 1 above.

Monday, 15 June 2009

It seems that membership of organisations which support or look at intellectual property is not enough to disqualify Judge Tomas Norström from his role in presiding at The Pirate Bay trial and the four now convicted defendants have failed in their attempt to have their high profile copyright infringement conviction set aside on these grounds. Judge Norström is a member of The Swedish Association For Copyright (SFU - whose membership include a lawyer from the music industry trade association IFPI) and a board member of the Swedish Association For The Protection Of Industrial Property (SFIR). The defendants made the case that Norström's association with pro-copyright bodies meant he was biased towards the record and film companies in the court case. The Swedish District Court which has been considering the allegations against Norström did not agree and ruled that there was no bias in his judgement making it clear that whilst the judge was indeed a member of the two intellectual property organisations, he had joined them in order to stay abreast of matters relating to the trial, meaning his membership meant he was better informed rather than biased. That decided, it remains fairly clear that the four will continue the appeal process on other grounds and indeed it seems the District Court's decision needs to go to an appellate court.

According to Reuters, cable TV operator Virgin Media is to launch a "ground breaking" unlimited music download subscription service through a partnership with the world's largest music company, Universal. As part of the arrangement, Virgin said it would also work to help prevent piracy on its network by educating users and would, as a last resort for persistent offenders, suspend Internet access, although no customers would be permanently disconnected.

On the eve of the publication of the Digital Britain report, maybe this is a signal that at least some ISPs are no longer willing to condone or tacitly support piracy?

The estate of Adrian Jacobs has today issued proceedings against Bloomsbury alleging that Harry Potter and the Goblet of Fire infringes copyright in The Adventures of Willy the Wizard - No 1 Livid Land. The estate is also seeking a court order against J. K. Rowling for pre-action disclosure to determine whether to join her as a defendant. The allegations concern plot similarities, both wizards competing in wizardry contests. Rowling is no stranger to the courts, so this contest of Willy and Harry's powers should prove to be spectacular!

Sunday, 14 June 2009

The Saturday Times (13 June) is home to an interview with UK Music boss Fergal Sharkey and whilst the piece does contain a LOT of detail about Feargal's hobby of fly fishing, which had little interest for me (although I did once try to obtain some feathers from one of my particularly obnoxious cockerels, Bane, for some lures), it does contains some clues about how the UK music industry is hoping it can co-operate with the Government and Internet Service Providers in the future.

Feargal says that over the next weeks there will be some “incredibly exciting announcements” coming from individual ISPs and record labels - and also alludes to some new developments for the music industry from the Government's Digital Britain report, due out next Tuesday. The details are unclear about the new deal with ISPs, but it seems they will involve bundling music subscriptions into the cost of broadband - potentially customers could get unlimited music by paying slightly more to their ISP than for a normal internet connection. Once that happens, Feargal says he hopes that the need for illegal downloading will disappear. “Research shows that 80 per cent of 14 to 24-year-old UK filesharers would pay for a legal service,” he says. “Quite clearly, this is the direction we need to be heading.” With the IFPI saying that just one in twenty downloads is legal, Feargal says that music piracy represents a “mortal threat” to the industry, he says. It is estimated that the UK sector lost £180 million to online piracy in 2008 alone. “The next 12 months is going to be a crucial time in determining whether we have much of a music industry left in five years' time,” Feargal says. “That's where we are. Quite clearly we need something to be done very quickly otherwise we might not have much of an industry left.”

Alexi Mostrous's article reports that Feargal favours a three-pronged attack on piracy. Firstly, a new range of music services offered by ISPs and others. Secondly an educational campaign, like Respect the Value of Music, which aims to teach young people about copyright and, finally, an arrangement with the ISPs to write warning letters to those suspected of piracy. Interestingly Feargal says in the article that whilst he doesn't want to pre-empt Digital Britain, he disagrees with the recommendation made in the initial report that the industry should be able totake legal action persistent offenders saying “We have made it clear that we have no ambition to relive the past,” he says, referring to the period from 2000 to 2003 where international music companies launched lawsuits against thousands of teenagers. “It's frustrating that people think all the music industry wants to do is disconnect people”. With a new Pirate Party MEP in the European Parliament, the rather messy hiatus in the passing of Frabce's 'three strikes' law and the Joel Tenenbaum and Jamie Thomas cases continuing to attact negative publicity for the Recording Industry Association of America, I would have thought this is a wise comment indeed!

Feargal is no doubt that the next six months will be crucial. “If we don't have help from the Government and the ISPs the next few years could be desperately bleak,” he says. “We're playing with a very considerable number of British jobs. There are people at a very senior level who are deeply, deeply concerned.

You can read the interview in full, and catch up on the exciting world of fly fishing at

Friday, 12 June 2009

Lord Carter is expected to release the 'Digital Britain' report next Tuesday ... and then resign, The Times reports here. Maybe he's running for cover, anticipating the reaction to proposals like these:

"The Government is thought to have backed away from proposals to require internet service providers to bar customers caught repeatedly accessing pirated material. Instead, insiders expect Lord Carter to recommend the introduction of premium-rate internet services that will allow users to access what they wish. Providers would then be expected to compensate music and film producers from a share of the additional revenue."

David Goldring (Novagraaf) has sent me this link to a BBC news item concerning Danielle and Jeff Smith, a US couple whose family photo, which they used on a Christmas card and then uploaded on to a blog, was found to have been used without their knowledge on an advertising poster for Grazie, a supermarket in the Czech Republic.

In classic copyright doctrine the mere fact that you don't police a work, but leave it where others can easily make use of it, does not affect your right to enforce it later, subject to the usual rules on limitation, estoppel etc. However, there is speculation as to whether, by making the photograph so publicly and conveniently available, the couple might be said to have implicitly permitted its use by others or to have abandoned any claim to enforce copyright in it subsequently. In this case the Czech supermarket probably gambled on the likelihood that Mr and Mrs Smith would never discover that the photo had been used -- but could it raise any argument in its defence? Thoughts, please ...

Thursday, 11 June 2009

More from the Guardian, who tell a most fascinating tale involving a gang of chart-savvy popsters who made allegedly made hundreds of thousands of pounds laundering money taken from stolen credit card - by buying their own sound recordings from iTunes and Amazon. The gang are alleged to have made several recordings which they gave to an online US company which uploaded them to be sold online – and over five months they bought their own songs thousands of times, spending around $750,000 (£468,750) on 1,500 stolen US and UK credit cards.

According to the Metropolitan Police and the FBI, the criminal network then allegedly reaped the royalties from the tracks, pulling in an estimated $300,000, paid over by the two sites. Both sites were unaware of the fraud being committed against them. An chart-topping sixty officers from the Met's central e-crime unit and West Midlands Police arrested seven men and three women in London, Birmingham, Kent and Wolverhampton who are being held on suspicion of conspiracy to commit fraud and money laundering. The Guardian reports that Detective Chief Inspector Terry Wilson, of the e-crime unit, had this to say:

"This has been a complex investigation to establish what we believe to be an international conspiracy to defraud Apple and Amazon. This investigation, with its national and international dimension, exemplifies why we have set up this national response to e-crime".

The arrests included three men aged 19, 23, and 41, and one woman, 37, all from Wolverhampton; a woman, 22, from Dartford, Kent; a woman, 36, and two men, 34 and 40, from Birmingham; and two men, 22 and 46, from Peckham, south London. The question I want to know is this – in a world of rampant peer-2-peer file swapping - with all these paid for 'legal' downloads - did any of the gang’s recordings make the digital download charts? Now that would have been top of the pops.

Wednesday, 10 June 2009

The French Constitutional Council has ruled that the country's controversial Création et Internet law (the loi Hadopi), which would disconnect repeat online copyright infringers, is unconstitutional. The "three strikes" law proposed to establish a High Authority to oversee a graduated response programme: rightsholders would investigate, then submit complaints to the High Authority, which would take action. Warnings would be passed to ISPs, who would forward them to customers; after two such warnings, the subscriber could be disconnected and placed on a nationwide "no Internet" blacklist.

A Toni Braxton impersonator has been acquitted of trying to fool paying customers in Suriname into thinking she's the real thing. A crowd of 3,000 people pelted the performer with beer cans and booed her offstage in February when they realized she was not the six-time Grammy winner best known for the hit, Un-Break My Heart. Here

The performer, who often impersonates other artists, maintained that she was unaware that adverts for the concert claimed Braxton would be appearing and had been told that she was performing a tribute act at a private party.

I'm no expert on Surinamese copyright law but lets just hope she paid any applicable publishing royalties. And she can probably be thankful that this "misunderstanding" didn't occur in England or Wales where she (or the concert promotors) may well have faced a strong case for passing off.

Did you believe that the demise of former US motor industry icon General Motors had anything to do with (i) making the wrong cars, (ii) making the right cars but not being able to sell them, (iii) providing over-generous employment and pension packages or (iv) not being able to get their hands on enough government money? If so -- think again! The real reason why GM filed for bankruptcy was to avoid the risk of having to pay damages for copyright infringement.

According to the BBC ("Dando sues car giant for song use"), Lemonheads singer Evan Dando has taken legal action in a Los Angeles federal court over the alleged use of a re-recorded version of his song It's a Shame About Ray which GM used in this Chevy advert. Dando is seeking damages and a portion of profits from the 2008 TV campaign.

Tuesday, 9 June 2009

Two new reports explore the barriers created by Crown copyright and orphan works. Is the Queen too remote? Are the orphans being shunned?

OPSI has carried out a survey to find out whether the public feel it's difficult to re-use Crown copyright material. It established that there would be little point in aligning it with Creative Commons as awareness and understanding of CC is low (so this symbol, right, got the thumbs down – phew!). A non-transactional process was perceived to be more encouraging and easier to understand than existing processes.

In from the Cold, a report by the Strategic Content Alliance and The Collections Trust, estimates that over 50 million items such as photographs, recordings, texts and other ephemera from the last 100 years risk becoming invisible because they are excluded from digitisation projects due to the complexity and time required to trace ownership.

Today is the feast day of Saint Columba, aka Colum-Cille, aka the Dove, aka Ireland's first reported copyright infringement defendant.

Columba (521-597AD), when visiting his former teacher St Finian of Clonard, copied a psalter, believed to be Psalms 31-106, possibly a copy of a translation by St Jerome. St Finian asked that the copy be returned to him, and when Columba refused, Finian took his case to King Dermott.

The High King's ruling is the now famous "to every cow its calf to every book its........." variously, "transcript", "author" or "copy". For more vellum-based facts on the case see uberblogmeister Jeremy Phillips' learned piece "St Columba the Copyright Infringer" [7 European Intellectual Property Review, 350] straight from the Royal Irish Academy in Dublin.

Patron saint of the Dioceses of Raphoe and Derry in Ireland, Dunkeld in Scotland, St Columba also offers protection from floods and is patron to poets and, of course, bookbinders. Copyright litigators should perhaps be added to the list.

'The increased importance of fair use' has motivated William Patry (Google Senior Copyright Counsel) to issue a new book on fair use in US copyright law (details here). It takes Chapter 10 from his vast authority Patry on Copyright and adds two new chapters. Patry explains their scope in his blog:

'One chapter is on the early 18th-century English cases from whence fair use arose, and the other chapter is on current international issues. The old English cases are both interesting and important for showing the boldness of the common law judges in forging the doctrine. I expect to expand the international chapter in the next edition given the increased importance of limitations and exceptions and the debates about the three-step test. The book will be updated once a year and will be reissued every year.'

Could those judges who were so bold in the early days of the Copyright Act 1709 (such as Lord Hardwicke, pictured here, who introduced the concept of 'fair abridgement' in 1740) have sliced through the Gordian knot of the 21st-century's copyright tangle?

Friday, 5 June 2009

The ECJ has received a reference (C-136/09) from the Greek Supreme Court concerning the interpretation of the Copyright Directive (2001/29/EC). Bafflingly – at this point at least – it seems indistinguishable from a previous reference. The question that just won’t go away concerns TV sets in hotel rooms.

The previous reference (C-306/05) was made by a Spanish court. Did the installation of TV sets in hotel rooms constitute ‘communication to the public’ under Article 3 of the Directive? Yes, answered the ECJ: although the mere provision of physical facilities didn’t amount to communication, the distribution of a signal did. The Court reasoned that the hotel was intervening, transmitting the broadcasts to ‘a new public’ – a public that consisted of a rapid turnover of guests who had the opportunity of watching the TVs (whether or not they actually did).

So what does the Greek court need clarified? The refinement (according to the IPO, here) is:

Can the mere installation of a television set in a hotel room and its connection to a central antenna in the hotel, and without any further actions or interventions by the hotelier, constitute communication to the public, within the meaning of Article 3 of Directive 2001/29/EC? In particular, does communication to the public by means of a television set require technical intervention by the hotelier?

In the absence of more detail, this is a question worthy of the Sphinx (though if you can read Dutch, you may be able to unravel the riddle by reading here). Perhaps the issue is that the TVs in the Divani Palace Acropolis hotel are all directly linked to the aerial, so arguably the hotel isn’t first receiving a signal and then passing it on to a ‘new public’? For the ECJ to make such a distinction would appear to require a step back to the position taken by the Advocate General in her opinion on C-306/5, which said the hotel was only communicating if it relayed a signal that had come to it first.

Let’s hope that it is Socratic clarity – not sophistry – that finally emerges from this cable-splitting debate.

"WIPO’s top copyright negotiating forum [The first team, rather than the reserves?] has agreed “to continue without delay” its work on facilitating the access of the blind, visually impaired (VIP) [Great acronym. Now we'll all have to find another term for 'very important person'] and other reading-disabled persons to copyright-protected works. This subject - as well as broader questions of limitations and exceptions to copyright law as they relate to libraries, archives and educational activities - is at the heart of current work of the Standing Committee on Copyright and Related Rights (SCCR).

Discussions at the SCCR meeting from May 25-29, 2009 centered on a series of practical measures to facilitate access to copyright-protected materials by reading impaired persons, including a stakeholders’ platform, a key aim of which is to develop solutions to make published works available in accessible formats in a reasonable time frame [This is starting to sound a bit like Google Book ...]. All participants supported moving forward with this work [Not what I'd heard informally. If this is true, why is it necessary to record it here?].

A proposal was also submitted by Brazil, Ecuador and Paraguay regarding a draft treaty prepared by the World Blind Union (WBU). The SCCR decided to continue these discussions at its next session later this year to give member states time to reflect on the best way to move forward.

The SCCR noted progress in the work on the stakeholders’ platform and encouraged the WIPO secretariat to continue to advance this initiative. This platform is designed to help secure access for disabled persons to copyright-protected works. Two meetings convened under the auspices of WIPO in January and April 2009 brought together major stakeholders, including representatives of copyright holders and reading impaired persons, to explore the specific needs, concerns, and possible approaches to facilitating access to works in formats suitable for people with reading impairment.

The SCCR also addressed the issue of the protection of broadcasting organizations and requested the secretariat to organize a series of national and regional meetings. These meetings are to focus on the objectives, specific scope and object of protection of a possible new international instrument that would update the international protection of broadcasting organizations on a signal-based approach. The secretariat will also commission a study on the socio-economic dimension of the unauthorized use of signals [Have we suddenly changed the subject here, or are we talking about a signal-based approach to broadcasts and the VIPs?].

Moreover, the SCCR called for consultations to break the deadlock relating to negotiations on the international protection of performances in audiovisual media. The secretariat will also organize a series of national and regional seminars as well as background documentation on the issue [ditto]".

Documents relating to the SCCR meeting, including a Chairman’s summary, are available here.

Thursday, 4 June 2009

"The Exploitation of Television Formats: Intellectual property and non-law based strategies" is the title of a dissemination seminar funded by the Economic and Social Research Council (ESRC) and conducted jointly by Bournemouth University and Fremantlemedia Ltd. According to the seminar rubric,

"Television formats, such as Pop Idol or Big Brother, are everywhere. They are one of the fastest growing programme types in a multi-channel media environment. However, since a series of court decisions during the 1980s and 1990s (Green v Broadcasting Corporation of New Zealand, 1988; Norowzian v Arks, 1998-2000) it is widely accepted that there is no such thing as a television format right under copyright law. How then could TV formats become a major export for the UK creative industries? Why pay for a format if you can re-create it for free?

Researchers from Bournemouth University examined the exploitation strategies of format developers under the ESRC s Business Placement Fellow scheme. The seminar presents the results of (1) an interview based study in the context of three major international television trade fairs (NATPE, DISCOP and ATF) and(2) video case studies of the exploitation strategy of three successful television formats developed by FremantleMedia (Idols, Got Talent and Hole in the Wall).

The seminar disseminates knowledge regarding the use of legal (e.g.copyright, trade marks, know-how licences, confidentiality agreements) and non-legal strategies (e.g. first mover advantage, reputation networks, regional offices and brand management) in the exploitation and protection of television formats. It explains how in 2007 the UK became the creator of 49% of all format hours broadcast worldwide. The seminar also sees the launch of a good practice learning resource that will be available for use in higher education and business.

The date of the seminar is 16 June 2009. It will be held from 1 pm to 2.30 pm at Fremantlemedia Ltd, UK, 1 Stephen Street, London, W1T 1AL. Attendance is free, but places are restricted to 40 and are available through bookings only. If you're interested please contact Emily Cieciura by email here or give her a call on 01202 965197.

Wednesday, 3 June 2009

J. D. California's sequel to J. D. Salinger's The Catcher in the Rye is most definitely an American copyright story. To better understand why it might be a 'rip-off pure and simple', here's the complaint. The Wall Street Journal provides commentary on some of the issues here.

Meanwhile Microsoft's new search engine, Bing, incorporates 'thumbnail'-sized video clips that play automatically when a cursor hovers over them. The FT discusses the copyright implications here.

"The state is warehousing IP…It's like locking up the Ark of the Covenant in Raiders of the Lost Ark" said John McVay (left), Chief executive for Pact, in an interview with new media age.

Apparently the Government is locking away up to £300m worth of intellectual property rights from digital content created by agencies and production companies for Government, local Government, NGOs and other public bodies. This content is being held under crown copyright, which prohibits it from being reused or re-licensed.

Pact, the production company trade body, has joined forces with the Institute of Practitioners in Advertising (IPA) to campaign to abolish this practice and is proposing a Digital Rights Framework for all publicly funded content which would enable digital content and software creators to retain and exploit their IP. A submission has been made to this effect to the Digital Britain report.

In theory this would allow greater opportunities for freelancers, agencies and productions companies to reuse work and could potentially stimulate a secondary rights market for this content. Pact believes that the successful overturn of the Government's position could be as significant for digital content as the Terms of Trade were in 2003 when they transformed the TV external supply sector by enabling Indies to use their rights to stimulate and grow that sector.

McVay is quoted by new media age as saying "in a digital world if you develop, say, an obesity calculator for the DoH, you could easily use this again, yet it goes under crown copyright." Not quite the Ark of the Covenant then, but anything that enables a more flexible licensing regime (and the additional revenue streams this may stimulate), prevents warehousing and which may ultimately encourage innovation must be a good thing.

Although one question that springs to mind is: if the public have paid for the content once, should there be strict guidelines in place which prevent any users or licensees of the content charging the public again?

Tuesday, 2 June 2009

I found three interesting articles online this week, all from the USA and all looking at the changing face of the music industry

Assessing Napster - 10 Years After by Benny Evangelista at the San Francisco Chronicle does what it says - looks at the history of Napster, set up by the then 18 year old Shawn Fanning ten years ago (and named after his haircut!) and then takes a look at Napster's impact on the music industry. Click on this link for more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/06/01/MNI917R8PB.DTL

The New York Times takes a peek at moves by the music industry in Australia to increase revenues from nightclubs - the article Music Industry Sees Nightclubs as a New Source of Revenue is by Eric Pfanner and looks at how a recent copyright settlement has increased the payment made by nightclubs for each patron from seven cents to fifty cents, and will ultimately rise to one dollar and five cents. A big increase - but as the music industry points out, all that music to keep the punter entertained -and the payment isn't anywhere near the cost of even one drink ..... http://www.nytimes.com/2009/06/01/business/media/01iht-music01.html?_r=1&ref=arts

And finally, here's a well written pop at Harvard Law Professor Charles Nesson, who is currently supervising a student team defending alleged file swapper Joel Tenenbaum (much to the annoyance of the US record labels). It's written by The Recording Industry of America's General Counsel Steven Marks and you might ask 'is it opinionated?' - and the answer is 'most certainly'! Marks argues that the RIAA's litigation campaign against file-swappers is secondary to creating vibrant legal alternatives—but it's still absolutely essential and completely fair. The article can be found at http://arstechnica.com/tech-policy/news/2009/05/riaa-responds.ars

The BNP's website (which this writer will not dignify with a weblink) offers CDs as part of their merchandise range, and artists and songwriters featured on these CDs are furious at seeing their work being used to promote and fund a thinly-disguised racist and xenophobic political agenda - "a disgusting liberty" in the words of one major star.

But these CDs were, in the main, licensed recordings puchased for resale by the BNP. That said, can it be true that the MCPS in the UK license the BNP's own label Great White Records? One release, by Traven Tucker and billed as "pure southern Americana" (so that would be gun-toting redneck narrowmindedness would it?) contains a cover version of the Les Reed- and Barry Mason- penned classic Delilah!

Songwriters and artists cannot rely on their moral rights (waived by contract) to protect them from such use - and nor can they expect their publishers and record companies to guard their reputations by asking that all end users of their work are acceptable or should that be "whiter than white"? Clearly an impossibility.

The site offers The Best of British Folk Music which apparently "represents the heart and soul of the common people of our land". Two Fairport Convention recordings (Madeleine and The Eynsham Poacher) are included, purportedly in support of this disingenuous puff. Scotland the Brave, a collection of bagpipe music features The Mull of Kintyre - about which, I am sure, Sir Paul McCartney will be deeply underwhelmed. And the recording of the White Cliffs of Dover is most unlikely to win the support of Dame Vera Lynn.

The widow of one songwriter included in the "Nostalgia" collection was appalled to discover that an Ivy Benson recording of her late husband's work The Homecoming Waltz , was being offered for sale. The thrice decorated journalist, songwriter and UK founder of BMI, the late Robert. S. Musel, flew over the Battle of the Bulge (yes, really) and was loved and respected by the music industry for his generosity of spirit and open-mindedness. But one can't libel the dead - which will, doubtless, infuriate the estates of Sir William Walton and Ralph Vaughan Williams whose works also feature.

Because libel it may well be. Help could be at hand for those maligned from the likes of Formula 1 driver Eddie Irvine and a Mr Tolley, a well-known amateur golfer in the 1930s.

Mr Tolley's image was used by Fry's chocolate in an advertisement and Tolley claimed the implication was that he had received payment for the endorsement, which would damage his status as an amateur golfer. The trial judge agreed that this use by the defendant constituted an innuendo which was capable of being defamatory and the House of Lord concurred (see Tolley v Fry [1931] A.C. 333).

In Irvine v Talksport [2002 FSR 943], [2003] EMLR 131, Formula One driver Eddie Irvine objected to the use of his manipulated image to advertise a radio station which Irvine contended was a false endorsement. He succeeded in proving (1) that he had substantial goodwill and (2) the action by Talk Radio gave rise to the message that Irvine endorsed, recommended or approved of the station.

The writers and artists whose work is being used to promote and fund the British National Party rightly do not approve of this use of their work. And this "right minded person" can make the link between their work being used for funding and thus their support of the BNP's repugnant policies. What about the general public? The Featured Artists Coalition and the MU have a fight on their hands.

Slightly after the event, it is admitted, but the February introduction of a Performances Rights Act in the US Senate may, if the Act is passed, throw Phonographic Performance Ltd (PPL) into something of a quandary here in the UK.

The Chairman of the US Senate Judicial Committee, Sen. Patrick Leahy (any relation to Dick?) introduced legislation which will oblige AM and FM radio stations to make licence payments for the broadcast of sound recordings and the recorded performances thereon. China, Iran and North Korea are as out of step as the USA in this respect and clearly the USA wants to join the "good guys".

Applauded by Tony Bennett (swoon) and Bono, such a new income stream would provide useful income to US recording artists still waiting to recoup their advances under their recording agreements (here in the UK this income is not applied to recoupment but paid direct to artists).

The UK joined other Rome Convention signatories in 1964 and initially record labels in the UK (via collecting society PPL) shared this type of revenue with performers by private agreement. In 1996 performers became entitled to this equitable remuneration for broadcast and public performance of their recorded performances by law - albeit asserted against the producer as opposed to the user (as is the case in other jurisdictions). So PPL, which had distributable revenues of £110.3 million in 2008, shares the income between its record label members and thousands of UK musicians and performers.

Natch, the Recording Industry Association of America (RIAA) welcomed the initiative, highlighting the international inequity of US labels and performers not being able to collect overseas royalties for music that is, after all, the core business of music stations. Songwriters and music publisher are paid via ASCAP, BMI and SESAC - but not record companies or performers. The popularity of US artists worldwide prompted the RIAA to label the lack of such a law "an inequity that costs American artists tens of millions of dollars each year". And there's the rub.

While PPL merrily collects from broadcasters in the UK and shares the revenue with UK performers, what becomes of the revenue from the licence fees that are attributable to the broadcast of work from US labels and artists? Is it distributed in the UK to UK beneficiaries? Or perhaps the licence fees only represent UK radio stations' broadcast of repertoire by UK labels and artists?

So, if the USA comes onstream with this new right, will licence fees to broadcasters go up because additional monies will have to be collected and paid to US labels and artists? My, how the broadcast community in the UK will love that! Or, will UK labels and artists be asked to sacrifice a percentage of their income so that it can be paid across to the new, true rightholders across the pond?

The June 2009 issue of Sweet & Maxwell's monthly European Intellectual Property Review (EIPR) leads with an opinion by New Zealand lawyer and scholar Paul Sumpter, "Copyright in slogans: another bald spot exposed", which subjects to critical analysis a September 2008 New Zealand High Court decision, Sunlec International Pty Ltd v Electropar Ltd, in which the words "Field Friendly--the best choice for field work" were held entitled to copyright protection as an original literary work.

The same issue also contains a note by Christian Rütz on Re Software, a November 2008 decision of the Landgericht, Dusseldorf on the application of exhaustion of rights doctrine to the sale of copies of computer software.

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